ML20069Q464

Notification of Pending Litigation.Court of Appeals,Dc Circuit,Remanded Case Re Exemption to Allow Site Preparation Activities to Commission to Reconsider 10CFR50.12 Availability.W/Certificate of Svc

ML20069Q464
Person / Time
Site:	Clinch River
Issue date:	12/08/1982
From:	Bergholz W, Edgar G ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP.
To:
References
82-1962, NUDOCS 8212090082
Download: ML20069Q464 (11)

Text

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12/8/82 OctKETED estiRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 82 yf,-8 R2 53 BEFORE THE l ATOMIC SAFETY AND LICENSING BOARD: y McNTM # -

q E m'a -

P In the Matter of ) ,

) l UNITED STATES DEPARTMENT OF ENERGY )

)

PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537

) l TENNESSEE VALLEY AUTHORITY ) {

)  !

(Clinch River Breeder Reactor Plant) )

)

I APPLICANTS' NOTIFICATION .

CONCERNING PENDING LITIGATION h

The United States Department of Energy (" DOE") and r Project Management Corporation ("PMC") , for themselves and l 2

on behalf of the Tennessee Valley Authority (the Applicants), j hereby file this Notification Concerning Pending Litigation.

f The Applicants are providing this Notification for the purpose i 9

of keeplng the Board currently informed as to matters poten-i tially affecting the above-captioned proceeding, as follows:

Section 50.12 Case - On August 19,.1982, NRDC and the Sierra Club ("Intervenors") filed, in the United States Court of Appeals for the District of Columbia Circuit, a Petition for Review and an Application for Stay of the Commission's August 17, 1982 Order granting Applicants' July 1,1982 request: to conduct sine .> reparation activities pursuant to 10 C.F.R. 5 50.12. As of August 30, 1982, all 8212090002 821200 PDR ADOCK 05000537 Q PDR

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' responsive pleadings concerning the Application for' Stay had t been filed with the court. 'On October 4, 1982, the court issued i ,

,e a temporary, stay of the Co' emission order under review in order to afford the cpurt an opportunity to more fully con, sider t,he pendiQg' Application for Stay and responses there'to. Site's i s preparation activities were halted as a result of the tempo- ~

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t w.

rary stay. OnOctober6,1982,thecourt-iast$edanorder a n

, denying the Application for Stay, and establishing an expedited L

schedule for review on the merits. On December 2, 1982, the court issued its opinion remanding the cause to the Commission for the conduct of an adjudicatory, hearing and reconsideration The of its August 17,, 1982 decision before February 4, 1983. i court further ordered that site preparation activitics could continue under,the Commission's August 17, 19'd2 Oider. On .

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December 7, 1982 the court, sua sponte, withdrew its December 2 opinion, and remanded the case to the Commission, (1) to, reconsider the avdilability of Section 50.12 under the Com- ,

to mission's own interpretation of that provision, or Q2) proceed with the LWA hearings (copy attached). ,

Respectfully submitted, George @. Edgar,&" -

i Attorney for P cet l

Management Corporation DATED: December 8, 1982 h Warren E. Bergholz f Ir.

1. A l

' Attorney for DepartmentofEn/ ergy l

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WILL BE PRINTED AT A LATER DATE j UNITED STATES COURT OF APPEALS  :

(jnikd StatBS COUlt of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT for I s Distrkt of Celiabis CHvit .

fil.ED DEC 7 1982

- . No. 82-1962 {.

Natural Resources Defense Council, Inc., GEORGE A. FISHER l' egggg g and The Sierra Club, Petitioners t 3

v- p United States Nuclear Regulatory Commission  !

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. and the United States of America, Respondents

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Project Management Corporation, ll

. Tennessee Valley Authority, Intervenors j;

. i; i

Petition for Review of an Order of the

• Nuclear Regulatory Commission .

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Argued November 24, 1982 -

Decided December 7,1982 Eldon V.C. Greenberg, with whom S. Jacob Scherr and Barbara A. Finamore, "

vere on the brief, for petitioners.

S_heldon L. Trubatch, Acting Assistant General Counsel, United States Nuclear Regulatory Commission, with whom E. Leo Sla;:gie, Acting Solicitor, United States Nuclear Regulatory Commission, were on the brief, for respondent, United States Nuclear Regulatory Commission.

_R.

Tenney Johnson, General Counsel, Joseph DiStefano, Assistant General Counsel, Department of Energy, Raymond N. Zagone and Jacques B. Gelin, Attorneys, Department of Justice, Leon Silverstrom, Assistant General Counsel, International Development and Defense Programs, were on the brief, for respondent, United States of America. Edusrd J. Shawaker, Attorney, Department of Justice, also entered an appearance, for respondent, United States 'of America.

George L. Edgar,' with whom Thomas A. Schmutz, Frank K. Peterson and G_regg A.

D_ay,, were on the brief, for intervenor, Project Management Corporation.

James E. Fox, was on the brief for intervenor, Tennessee Valley Authority..

Robert L. Baum, Eugene R. Fidell and Marilyn J. Shaw, were on the brief, for amicus curiac, urging affirmance.

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Natural Resources Defense Council, Inc. and Sierra Club v. United States Nuclear Regulatory Commission and United States of America, No. 82-1962 Before: MACKINNON, M1KVA, and EDWARDS, Circuit Judges. '

Opinion for the court oer_ curlarn. .

PER CURIAM: On December 2,1982, a per curiam opinion was filed in the -

instant case, reversing and remanding the record to the Nuclear Regulatory Commission .

4 l ("NRC" or " Commission") "to hold a prompt adjudicatc'ry hearing strictly limited to the issues presented by the 10 C.F.R. S 50.12 exemption request for the Clinch River Breeder Reactor Plant." Following the issuance of that opinion the panel has, sua sponte, ,

reconsidered the matter and decided to withdraw the Opinion and Order of December 2, 1982, and to issue this modified opinion. -

Petitioners seek review of an order of the United States Nuclear Regulatory Commission which permitted the United States Department of Energy (" DOE") and Intervenors to commence site preparation activities for the Clinch River Breeder j ' Reactor'(" Clinch River") prior to the issuance of a construction permit. The order was issued pursuant to 10 C.F.R. S 50.12 (1982),1/ which provides that the Commission may, i

1/ 10 C.F.R. 5 50.12 (1982) provides:

(a) The Commission may, upon application by any interested person or upon its own initiative, grant such exemptions from the requirernents of the regulations in this part as it determines are authorized by. law and will not endanger life or property or the common defense and security and are otherwise in the public interest.

(b) Any person may request an exempt!on permitting the conduct of activities prier to the issuance of a construction permit

, prohibited by S 50.10. The Commission may grant such an exemption i upon considering and balancing the following factors: ,.

(1) Whether conduct of the proposed activities will give rise to a significant adverse impact on the environment and the nature and extent of such impact, if any; 1

(2) Whether redress of any adverse environment.[ sic] impact from conduct of the proposed activitics can reasonably be effected

[ContinuecQ ,

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upon consideration of certain factors, ggant, exemptions from its regulations. Following an informal proceeding at which it received written and oral submissions from interested parties concerning a section 50.12 exemption request for Clinch River submitted by DOE,2[the Commission authorized site preparation activities for Clinch River, concluding that each of the factors enumerated in section 50.12 favored permitting those activities prior to the issuance of a construction permit. In re United States Department cf Energy (Clinch Riv.er Breeder Reactor Plant), CLI-82-23, slip op. at 31-32 (Aug.17, 1982)..

Petitioners contend that, it) order to authorize the commencement of sites preparation activities, the Commission was required either (i) to adhere to the .

procedures. incorporated in section 50.10, the regulation ordinarily invoked in these

' circumstances or (ii) to abide by its own prior interpretation of the limited circumstances under which section 50.12 is available. We agree.

Prior to the enactment of the National Environmental Policy. Act, 42 U.S.C. S 4331 et see. (1976 & Supp. IV 1980)(NEPA), the Commission consistently asserted that it had no authority under the Atomic Energy Act to consider non-safety related environ-

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should such redress be necesary; (3) Whether conduct of the proposed activitics would foreclose subsequent adoption of alternatives; and t (4) The effect of delay in conducting such activities on the public interest, including the power needs to be used by the proposed incility, the availability of alternative sources, if any, to meet those needs on a timely basis and delay costs to the applicant and to consu, mers. ,

Issuance of[such exemption shall not be deemed to constitute a commitment to issue a construction permit. D'. iring the period of any exemption granted pursuant to this paragrgh (b), any activities conducted shall be carried out in such a manner as will minimize or reduce tiicir environmental impact.

E Letter from W. Kenneth Davis, Acting Secretary of Energy to the Nuclear Regulatory Commission (July 1,1982). DOE submitted the section 50.12 exemption request for Clinch River "for itself and on behalf of Project Management Corporation and the ,

Tennessee Valley Authority." ,Id.

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mtntal issues associated with the licensing of nuclear power facilities. Calvert Cliffs' Coordinating Committee v. United States Atomic Enargy Commission,146 U.S. App. -

D.C. 33, 36, 449 F.2d 1109,1112 (1971). At that time, for example, Commission

. authorization to commence site preparation activities was not required. In re Kansas ,

Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit No.1), CLI-77-1, 5  :

N.R.C.1, 6 (1977). NEPA expanded the Commission's mandate under the Atomic Energy .

)

. Act to require it to consider the environmental consequences of actions taken pursuant I

to the Act. Calvert Cliffs' Coordinating Committee v. United States Atomic Energy l

Commission, supra,146 U.S. App, D.C. at 36-37,449 F.2d at 1112-13. ,  ;

l Accordingly, the Commission promulgated regulations prohibiting site preparation ectivities without Commission authorization. 10 C.F.R. SS 50.10(c), N 0.10(e') 5 (1982).

See In re Kansas Gas & Electric Co., supra, 5 N.R.C. at 6. The Commission was aware that the greatest environmental impact of licensing actions often was associated with -

the site preparation activities which necessarily accompany the construction of a nuclear power facility. j[d. at 7 n.3. The Commission recognized that in order to comply with NEPA's mandate to consider environmental issue mquired to consider site

. preparation activities in its licensing proceedings and to do so in the context I

of adjudicatory hearings.

! Section 50.12 provides a raechanism for obtaining an exemption from the procedures incorporated in section 50.10, but one that may be invoked only in 3/ 10 C.F.R. S 50.10(c) (1982) provides: r Notwithstanding the provisions of paragraph (b) of this section, and subject to pungraphs (d) and (e) of this section, no person shall effect commencement of construction of a production or utilization facility subject to the provistors of S 51.5(a) of this chapter on a site on which the facility is to be operated titil a construction permit has been issued. As used in this paragraph, the term "ccmmencement of construction" means any clearing of land, excavation or other substantial action that would adversely affect the environment of a site . . . .

e extraordinary circumstances. O The Commission has made clear that section 50.12 h cvailable "only in the presence of exigent circumstances, such as emergency s'ituations in which time is of the essence and relief from the Licensing Board is impossible or highly unlikely Washington Public Power Supply System,5 N.R.C. 719,723 (1977).O In this ,

case, despite t'ne fact that section 50.10(e) may have been appropriate and ceallable, the Commission proceeded under section 50.12 without identifying the " exigent circumstances" that warranted such extraordinary relief. Fair notice to affected parties requires that the Commission not alter suddenly and sub silentio settled interpretations  ;

of its own regulations. See Greater Boston Television Corp. v. F.C.C.,444 F.2d 841,852  !

(D.C. Cir.1970). Accordingly, the record is remanded to the Commission so that it may f either proceed under section 50.10 or explain why it is appropriate in this case to invoke ,

scetion 50.12.

ORDER F'or the reasons set forth above, it is hereby l

l ORDERED, that the Opinion and Order entered on December 2,1982, are hereby l

withdrawn; and it is further ,

t ORDERED, that the case is retained by the existing panel and the record is remanded to the Commission either (1)'to reconsider the availability of section 50.12 under the Commission's own interpretation of that provision or (2) to proceed with its adjudicatory, hearing pursuant to section 50.10 to determine if site preparation activities.

O The Comm!ssion does not contend, and we do not here mean to suggest, that the legulation embodied in section 50.12 may be invoked to avoid the statutory henring requirements explicitly set forth in section 189(a) of the Atomic Energy Act,42 U.S.C. S l 2239(a) (1976).

O Cf. 39 Fed. Reg. 14506,14507 (1974) (describing the Commission's " policy regarding granting of exemptions from S 50.10(c) pursuant to 50.12(a)" as one of " granting such exemptions sparingly and only in cases of undue hardship" and asserting that the Commission "will continue [that} policy").

may continue; and it is further ORDERED, that the Commission file the record, as supplemented by the Commission's response to the foregoing instrue'tions, on or before January 7,1983; and it is further ORDERED, that site preparation activities for the Clinch River Breeder Reactor may continue as authorized by the above referenced decision of the Commission subject to the further order of this Court or of the Commission. ,

1 Judgement accordingly.

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UNITED STATES OF AMERICA NUCLEAR REGULATOP.Y COMMISSION 09fgf0 _

In the Matter of ) '82 DEC -8 P12 53

)

UNITED STATES DEPARTMENT OF ENERGY )

) crco stu:tiu <- .

PROJECT MANAGEMENT CORPORATION ) Docketr grnRgfy3g g, f l.

)

TENNESSEE VALLEY AUTHORITY )

) .

(Clinch River Breeder Reactor Plant) )

) .-

CERTIFICATE OF SERVICE Service has been effected on this date by personal delivery or first class mail to the following:

• • • Marshall E. Miller, Esquire .

Chairman Atomic Safety & Licensing Board Nuclear Regulatory Commission Washington, D.C. 20545 (2 copies)

• • • • • Dr. Cadet H. Hand, Jr.

Director Bodega Marine Laboratory University of California P.O. Box 247 Bodega Bay, California 94923

• • • Gustave A. Linenberger Atomic Safety & Licensing Board Nuclear Regulatory Commission ~

Washington, D.C. 20545

• • • • Daniel Swanson, Esquire Stuart Treby, Esquire Office of Executive Legal Director Nuclear Regulatory Commission Washington, D.C. 20545 (2 copies)

• Atomic Safety & Licensing Appeal Board Nuclear Regulatory Commission Washington, D.C. 20545

• Atomic Safety & Licensing Board Panel Nuclear Regulatory Commission Washington, D.C. 20545 4

'l

• Docketing & Service Section Office of the Secretary .

Nuclear Regulatory Commission 1 Washington, D.C. 20545 (3 copies) j; William M. Leech, Jr., Attorney General ,

William B. Hubbard, Esquire 1

Michael D. Pearigen, Esquire State of Tennessee Office of the Attorney General 450 James Robertson Parkway Nashville, Tennessee 37219 Oak Ridge Public Library Civic Center Oak Ridge, Tennessee 37820 Herbert S. Sanger, Jr., Esquire Lewis E. Wallace, Esquire W. Walter LaRoche, Esquire James F. Burger, Esquire Edward J. Vigluicci, Esquire Tennessee Valley Authority Office of the General Counsel 400 Commsrce Avenue Knoxvillu, Tennes.see 37902 (2 copies)

• • Dr. Thomas Cochran Barbara A. Finamore, Esquire Natural Resources Defense Council, Inc.

1725 Eye Street, N.W.

Suite 600 Washington, D.C. 20006 (2 copies)

Ellyn R. Weiss, Esquire >

Harmon & Weiss 1725 Eye Street, N.W.

Suite 506 Washington, D.C. 20006 l Lawson McGhee Public Library l 500 West Church Street Knoxville, Tennessee 37902 William E. Lantrip, Esquire Attorney for the City of Oak Ridge P.O. Box 1 l

Oak Ridge, Tennessee 37830

• • Leon Silverstrom, Esquire Warren E. Bergholz, Jr., Esquire Department of Energy .

l 1000 Independence Avenue, S.W.

Room 6B-256 Washington, D.C. 20585 (4 copies)

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J

• • Eldon V. C. Greenberg Galloway & Greenberg .

1725 Eye Street, N.W.

Suite 601 Washington, D.C. 20006 Commissioner James Cotham Tennessee Department of Economic and Community Development Andrew Jackson Building Suite 1007 Nashville, Tennessee 37219

- M, Geotge Ly ddgar Attorney for

'g Project Management Corporation DATED: December 8, 1982

-*/ Denotes hand delivery to 1717 H Street, N.W.,

Washington, D.C.

• • / Denotes hand delivery ,to indicated address.

• • • / Denotes hand delivery to 4350 East-West Highway, Bethesda, Maryland.

• • • • / Denotes hand delivery to 7735 Old Georgetown Road, Maryland National Bank Building, Bethesda, Maryland.

• • • • • / Denotes delivery by Air Express.

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